[iic-proposed-bylaws]

Failure to implement Bylaws

To: iic-proposed-bylaws@xxxxxxxxx

Subject: Failure to implement Bylaws

From: "Edward Hasbrouck" <edward@xxxxxxxxxxxxx>

Date: Thu, 24 Sep 2009 18:50:39 -0700

ICANN has requested comments by tomorrow, 25 September 2009, on proposed
revisions to the ICANN Bylaws for "Independent Review" of ICANN decisions:
http://www.icann.org/en/announcements/announcement-27jul09-en.htm
The fundamental problem with ICANN's current Bylaws for independent review
is that those bylaws have never been properly implemented, and that --
despite multiple requests for independent review of ICANN decisions -- no
independent review comporting with either the present or the previous
independent review Bylaws has ever been conducted.
(According to a cursory statement on the ICMRegistry.Com Web site, some
sort of "hearing" is being conducted in Washington this week in response
to ICM Registry's request for independent review of an ICANN decision.
However, whatever is happening in that matter is not in accordance with
ICANN's Bylaws on independent review. First, the proceedings are not
being conducted with the maximum extent feasible of transparency, as
required by the Bylaws. Second, the independent review provider and its
procedures were not determined by ICANN in accordance with the procedural
rules of ICANN's bylaws for such policy decisions. Instead, ICANN appears
to have chosen the independent review provider and allowed it to determine
procedures -- which procedures themselves do not comport with ICANN's
Bylaws on transparency -- through completely improper secret, ex parte
negotiations with the potential independent review provider while
independent review requests with other parties were already pending.)
Changing the bylaws on independent review will accomplish nothing unless
those bylaws are actually implemented (in accordance with, inter alia, the
other provisions of the Bylaws with respect to policy development and
decision-making procedures and transparency). ICANN has done nothing to
give reason for any confidence whatsoever that ICANN will actually
implement any accountability mechanisms, current or revised.
As I have noted repeatedly in previous comments to ICANN, ICANN has failed
to implement any of the three accountability mechanisms required by its
current Bylaws. ICANN's Board of Directors has never held a publicly
disclosed vote to appoint or reappoint an Ombudsman. The Reconsideration
Committee of the Board of Directors has made decisions which, by its own
declaration, were based on matters not permitted to be a basis for such
decisions. And ICANN has never conducted a policy development process to
designate an independent review provider or develop or approve procedures
for independent review, just as it never appointed the members of the
independent review body provided for by its previous Bylaws.
(I also note that the ICANN's request for comments is materially false and
misleading in its claim that, "ICANN has an Independent Review Process in
place, as established at Article IV, Section 3 (1) of the bylaws". ICANN
does not, in fact, have any process in place that has been established in
accordance with ICANN's accountability and transparency Bylaws.)
ICANN has knowingly and wilfully persisted in this failure, in flagrant
violation of its own Bylaws. Members of ICANN's Board of Directors have
tolerated this ongoing and flagrant violation of the Bylaws. Given
ICANN's failure to establish any other means of accountability, the only
remaining mechanisms for calling ICANN to account are for the United
States Department of Commerce to revoke its contracts with ICANN for
breach of contract (in that ICANN has made contractual commitments to the
DOC to observe its Bylaws on accountability), and for the State of
California to revoke ICANN's corporate charter for persistent failure to
operate in accordance with its Bylaws, as required by that charter.
Requests for independent review made under both the previous and present
independent review Bylaws remain pending and have not been acted on by
ICANN. The proposed revised independent review Bylaws are silent on what
action, if any, will ever be taken on these outstanding requests.
Rather than revise the independent review Bylaws yet again, ICANN should
implement its existing Bylaws on accountability, including independent
review, by (1) appointing an Ombudsman, (2)compelling the Reconsideration
Committee to act in accordance with the Bylaws in new cases and to
properly reconsider those cases previous decided on impermissible grounds,
and (3) designating an Independent Review Provider, developing procedures
for independent review, and considering the backlog of outstanding
requests for independent review, all in accordance with the procedural
rules in the Bylaws for such decisions and actions, and the general
mandate of the Bylaws for the maximum extent feasible of transparency in
the operations of ICANN and its subsidiary bodies.
Sincerely,
Edward Hasbrouck
edward@xxxxxxxxxxxxx
http://hasbrouck.org/icann